JUDGMENT : Whether it is permissible to apply Section 16 of Hindu Marriage Act, 1955 invariably in all cases wherein there is denial of solemnization of marriage or paternity or legitimacy of the child who claims right over the property and whether it can be raised as a defence in a suit for partition, is the question came up for consideration in this appeal. 2. The suit is for simple partition by the daughter of one Gopalan Nair claiming that she is the daughter born to Nani Amma. She was aged 51 at the time when the suit was filed. The defendants inter alia contended that Gopalan Nair never entered into any marriage and as such denied her claim over the property. The suit was dismissed by both the courts below on the reason that the plaintiff failed to prove solemnization of marriage between her father and mother by applying Section 16 of Hindu Marriage Act, 1955. It was also found that Ext.A4 school Admission Register is not sufficient to infer any valid marriage and that without proving solemnization of marriage, the plaintiff cannot maintain a suit for partition. Aggrieved by the said decree and judgment, the plaintiff came up with this appeal. 3. It was submitted by the respondent that Gopalan Nair never entered into any marriage and as such the claim of plaintiff will not stand unless there is evidence to show solemnization of marriage, by relying on the decision of a Division Bench of this Court in Jayachandran v. Valsala ( 2016 (2) KLT 81 ). 4. Section 16 of Hindu Marriage Act, 1955 is a special provision dealing with the effect of annulment of marriage by a decree or a decree of void marriage either under Section 11 or under Section 12 of the Act and it was really an incidence attached with the birth of a child and a consequence attached with a decree of nullity of marriage or void marriage. This might be the reason why the said provision was incorporated in the Hindu Marriage Act instead of incorporating the same in the Act dealing with succession - Hindu Succession Act. This might be the reason why the said provision was incorporated in the Hindu Marriage Act instead of incorporating the same in the Act dealing with succession - Hindu Succession Act. After its substitution by amending section 11 of marriage laws ( Amendment) Act, 1976, it has its own independent strength, apart from Sections 11 and 12 of the Hindu Marriage Act, 1955, though acting as an incidence to the decree of nullity of marriage or void marriage, but had given an extension to legitimize the children even in the absence of a decree declaring the marriage either as void or null by virtue of amended section 16 of the Hindu Marriage, 1955, which is extracted below for reference: “16. Legitimacy of children of void and voidable marriages - (1) Notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such a child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. (2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity. (3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.” 5. The High Court of Madras in Thulasi Ammal v. Gouri Ammal ( AIR 1962 Mad. The High Court of Madras in Thulasi Ammal v. Gouri Ammal ( AIR 1962 Mad. 510 ) observed that Section 16 of Hindu Marriage Act,1955 clearly contemplates the case where a decree of nullity is granted in respect of any marriage under section 11 or section 12, it is only in such an event if any child begotten or conceived before the decree is made, shall be deemed to be a legitimate child born of that marriage, notwithstanding the decree of nullity. It is by virtue of section 11 of Marriage Laws (Amendment) Act 1976 (68 of 1976) provisions were made in Section 16 notwithstanding that a marriage is null and void under Section 11 that, any child of such marriage who would have been legitimate if the marriage had been valid shall be legitimate born either before or after the commencement of Marriage Laws ( Amendment) Act 1976 irrespective of whether a decree of nullity of marriage was granted under the Act or not or whether or not the marriage is held to be void otherwise than on a petition under this Act. The effect of amendment by substitution of Section 16 by Section 11 of the Marriage Laws ( Amendment) Act, 1976 relates back to the date of the parent Act and the object sought to be achieved is to legitimize all the children irrespective of their date of birth or the date of death of the parents whose estate falls for division by giving a deemed status of legitimacy entitling the child a share over the property of parents who died before the notification of the amending Act. 6. The Apex Court had the occasion to consider the impact of amendment by substitution of Section 16 by the Marriage Laws (Amendment) Act, 1976 in Parayankandiyal Eravath Kanapravan Kalliani Amma and Ors. v. K.Devi and Ors. ( AIR 1996 SC 1963 = 1996 (4) SCC 476) and laid down that the non- obstante clause incorporated therein would indicate the legislative intention to de-link Section 16(1) from Section 11 and to give full vigour in the matter of succession to the children born out of a void marriage or when the marriage was nullified. 7. All these would show that Section 16 is really a special provision and an incidence attached to the decree of nullity of marriage or a void marriage. 7. All these would show that Section 16 is really a special provision and an incidence attached to the decree of nullity of marriage or a void marriage. But by an amendment the benefit was extended to all illegitimate children born out of wedlock even in the absence of such a decree. It is really an extension of the benefit conferred under Section 16 of the Hindu Marriage Act,1955 to legitimize children even in the absence of a decree of nullity of marriage or void marriage. But Section 16 of the said Act by its nature is principally an incidence attached to the decree of nullity of marriage or void marriage and the extension of benefit even in the absence of a decree of nullity will not change its original character as an incidence attached to a decree of nullity of marriage or void marriage as it is an additional measure incorporated by amendment so as to protect the interests of illegitimate children in the absence of such a decree. The reason is well evident that there cannot be an annulment of marriage after the death of one of the spouse and it would virtually deny the benefit conferred under Section 16 of the Act to the children born, in the absence of a decree of annulment of marriage during the life time of the spouse. It will not change the very principle under Section 16 of the Act as a consequence to a decree of nullity of marriage or void marriage under the provisions of Hindu Marriage Act, 1955. In the absence of a decree of nullity of marriage or void marriage, the civil court can go into the question of nullity or voidability of the marriage when the question of legitimacy and benefit conferred under Section 16 of the Hindu Marriage Act came up for consideration. The question of solemnization of marriage would arise on two occasions that (1) at the time of adjudication of validity of the marriage either under Section 11 or under Section 12 of Hindu Marriage Act by the competent court under that Act or (2) at the time when the matter came up as a dispute in a civil suit without having an adjudication in the matter of nullity or voidability of the marriage by a decree. In the former case, when there is a decree of nullity of marriage or void marriage, there would not be any necessity to further plead or prove the solemnization of marriage. But in the later case, when it came up before a civil court as part of civil dispute, it should be understood in relation to the amendment by substitution of Section 16 de-linking Section 11 of the Act, by which certain illegitimate children who would fall outside the parental provision, Section 11, were brought under the purview of Section 16 as legitimate children so that they can inherit the property of their parents. In other words, when there is a decree of nullity of marriage or void marriage, the civil court will not have jurisdiction to deal with the question of solemnization of marriage or its validity. It is in the absence of such a decree, the civil court can go into that question only for the purpose of extending the benefit conferred on the illegitimate children by virtue of amended Section 16 of the Hindu Marriage Act, 1955. 8. The Division Bench in a reference in Jayachandran's case (supra) had gone into the matter in detail by referring to the pronouncement in Kalliani Amma's case [ 1996(2) KLT 42 (SC)] by the Apex Court wherein it was held that the mischief or vice, which was the basis of unconstitutionality of original Section 16 of the Act was effectively removed by the present provision. 9. Where a man and a woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved that they were living together in consequence of a valid marriage and not in a state of concubinage. But it was observed by the Apex Court in Bhaurao Shankar Lokhande v. State of Maharashtra ( AIR 1965 SC 1564 ) that inorder to constitute a valid marriage in the eye of law it has first to be established that the same was a valid marriage. But the legal position laid down should be understood in the context of criminal liability to be fastened on a marital offence covered by the Indian Penal Code. 10. But the legal position laid down should be understood in the context of criminal liability to be fastened on a marital offence covered by the Indian Penal Code. 10. In a subsequent decision the Apex Court ( Reema Aggarwal v. Anupam and others [(2004) (3) SCC 199]) dealing with the liability which can be fastened under Sections 494 and 498-A IPC had the occasion to consider the importance of long cohabitation and its consequences. The relevant portion of paragraph 9 of the judgment is extracted below for reference : “9. The marriages contracted between Hindus are now statutorily made monogamous. A sanctity has been attributed to the first marriage as being that which was contracted from a sense of duty and not merely for personal gratification. When the fact of celebration of marriage is established it will be presumed in the absence of evidence to the contrary that all the rites and ceremonies to constitute a valid marriage have been gone through. As was said as long as back in 1869 "when once you get to this, viz., that there was a marriage in fact, there would be a presumption in favour of there being a marriage in law." (See Inderun Valungypooly Taver vs. Ramaswamy Pandia Talaver, Moo IA p. 158 (1869 (13) MIA 141). So also where a man and woman have been proved to have lived together as husband and wife, the law will presume, until contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage. (See Sastry Velaider vs. Sembicutty (1881 (6) AC 364) following De Thoren vs. Attorney General (1876 (1) AC 686) and Piers vs. Piers (1849 (2) HLC 331). Where a marriage is accepted as valid by relations, friends and others for a long time it cannot be declared as invalid. In Bhaurao Shankar Lokhande v. State of Maharastra ( AIR 1965 SC 1564 , para 3), it was observed by this Court. The bare fact that man and woman live as husband and wife it does not at any rate normally give them the status of husband and wife even though they may hold themselves before the society as husband and wife and the society treats them as husband and wife. These observations were cited with approval in Surjit Kaur vs. Garja Singh ( AIR 1994 SC 135 ). These observations were cited with approval in Surjit Kaur vs. Garja Singh ( AIR 1994 SC 135 ). At first blush, it would seem that these observations run counter to the long catena of decisions noted above. But on closer examination of the facts of those cases it is clear that this Court did not differ from the views expressed in the earlier cases. In Lokhandes case (supra), this Court was dealing with a case of prosecution for bigamy.” 11. From the discussion, it is clear that the rule of evidence that can be applied in fastening a criminal liability apart from a civil liability though one and the same, there are differences in its application. Inorder to fasten criminal liability, strict proof is required, but in the matter of civil liability, it can be based even on preponderance of probabilities. Strict proof of marital status is required to fasten criminal liability for any marital offence, but such requirement cannot be insisted in the matter of civil liability. Existence of long cohabitation in the absence of contra evidence would give rise a presumption that they were living together in consequence of a valid marriage and Section 16 of the Act cannot be applied when the marriage was solemnized long back and became incapable of ascertainment due to long lapse of time and when there is material to show the paternity, in the absence of contra evidence, the same can be accepted. It is upon the person who disputes the legitimacy of the child to adduce contra evidence so as to bring the matter within the purview of Section 16 of the Act. But the legal position may be different, when the person claims legitimacy based on Section 16 of Hindu Marriage Act, necessarily the burden to prove solemnization of marriage in the absence of a decree of annulment or void marriage will be on that person. It should be understood that Section 16 of the Act covers certain areas which would not come under the purview of presumption of marriage governed by the general rule of evidence. It should be understood that Section 16 of the Act covers certain areas which would not come under the purview of presumption of marriage governed by the general rule of evidence. If the marriage is ancient and old, not capable of proving the same by direct evidence either documentary or oral, presumption based on long cohabitation for a valid marriage can be safely applied, wherein there is no scope for any application of Section 16 of Hindu Marriage Act, 1955, unless the person who disputes the marriage discharges his initial burden by contra evidence regarding non-existence of a valid marriage. In other words, it can be applied only when there is evidence to show nullity of marriage or voidability of marriage on the ground of existence of an earlier marriage or such other ground and the said burden initially lies on the person who disputes the validity of the marriage on account of any such ground. There can be a clear distinction between the cases wherein the special provision-Section 16 of Hindu Marriage Act, 1955 can be applied from that of cases wherein presumption of marriage could be possible by long cohabitation and oldage of the marriage. The provision, Section 112 of the Indian Evidence Act and the presumption available thereunder, intended to promote legitimacy between the offsprings and not to bastardize is relevant at this juncture. The law had always leaned in favour of the innocent child from being bastardize, except in exceptional circumstances and the principal aim under Section 112 of the Evidence Act and Section 16 of Hindu Marriage Act,1955 is to protect the interest of an innocent child from being bastardized and excluded in inheriting the asset of his parents. If a man and woman proved to have been having cohabitation over a long period of time, that cohabitation would produce a presumption favouring their marriage status and in such cases Section 16 of the Act cannot be applied, unless there is contra evidence in support of the voidability or nullity of the marriage solemnized or any claim was raised by any illegitimate child under that section. Production of evidence showing paternity would be a sufficient piece of evidence to show the legal status of parents and in such situation, a mere denial of marriage or marital relationship alone would not attract Section 16 of Hindu Marriage Act. Production of evidence showing paternity would be a sufficient piece of evidence to show the legal status of parents and in such situation, a mere denial of marriage or marital relationship alone would not attract Section 16 of Hindu Marriage Act. Of course, the legal position would be different when the plaintiff claims a benefit under Section 16 of the Act and in the absence of a decree of annulment of marriage or void marriage, he has to prove the solemnization of marriage and the initial burden lies on him. What is dealt with by the Division Bench of this court in a reference in Jayachandran's case (supra) is the necessity to plead and prove solemnization of marriage either in a case of void or voidable marriage or nullity so as to attract Section 16 of the Hindu Marriage Act, 1955 and it will not render any assistance unless the claim or the defence would fall under the purview of Section 16 of the said Act. 12. In the instant case, the production of Ext.A4 school Admission Register would discharge the burden lies on the person to prove his paternity especially when he is aged 51 years. There may not be any evidence available to prove the marriage which was solemnized 51 years back. The necessity to plead and prove the solemnization of marriage would not arise in such situation, unless there is claim based on Section 16 of Hindu Marriage Act, 1955. 13. Section 16 of Hindu Marriage Act, 1955 was applied wrongly by both the courts below. Ext.A4 school Admission Register can be safely acted upon to show the paternity of the plaintiff. In the written statement, there is only a mere denial of marriage between the father of plaintiff with her mother. It will not constitute the application of Section 16 of Hindu Marriage Act, 1955. The marriage being an old one, having an oldage of more than 51 years and not capable of proving by documents or by direct evidence, who witnessed the marriage, Ext.A4 school Admission Register showing the paternity of the plaintiff would be sufficient evidence and it will give rise a presumption of marriage by long cohabitation and existence of a marital relationship between the father and mother of the plaintiff. The plaintiff being a sharer is entitled to partition and separate possession of her share over the property. The plaintiff being a sharer is entitled to partition and separate possession of her share over the property. For the purpose of adjudicating the extent of share entitled by the plaintiff, a fresh disposal by the trial court is required. 14. As such, the decree and judgment of both the courts below are set aside. The matter is remanded back to the trial court only for the purpose of deciding the extent of share entitled by the plaintiff and to pass a preliminary decree in that behalf. The parties shall appear before the trial court on 30/10/2019. The appeal is allowed in part accordingly. No costs.